Opinion
No. COA09-97.
Filed September 1, 2009.
Durham County No. 03JB127.
Appeal by juvenile from an adjudication order entered 19 March 2008 and disposition order entered 17 April 2008 by Judge William A. Marsh III in Durham County District Court. Heard in the Court of Appeals 27 July 2009.
Attorney General Roy Cooper, by Assistant Attorney General Donna D. Smith, for the State.
Lucas Ellis, PLLC, by Anna S. Lucas, for juvenile.
T.B. (juvenile) appeals an adjudication of delinquency for attempted robbery with a dangerous weapon, and the subsequent level III disposition committing him to a youth development center. Juvenile argues the trial court erred: (1) by denying his motion to dismiss based on insufficient evidence; (2) in adjudicating juvenile delinquent after making an improper and biased comment regarding the credibility of the witness; and (3) in entering a level III disposition order without making any findings of fact. We affirm in part, reverse in part, and remand for a new disposition hearing.
The record indicates that on 19 March 2008, juvenile was adjudicated delinquent for attempted robbery with a dangerous weapon. At the hearing on this matter, the State presented evidence tending to show the following: Around 10:00 on the night of 1 December 2007, John Rowell, an employee with the Durham Housing Authority, received a call that a gas line was not working at one of the residences. He didn't smell any gas inside the house, so he went outside to check the meter. He had to go back and forth between the inside of the house and the meter outside several times. Although the meter was at the back of the house, there were two porch lights on in that area, and Rowell also had a flashlight to help him see. He noticed several people in the parking lot, but did not pay much attention to them.
At one point Rowell was bending over the meter outside, and when he turned around, a person was standing there with a black gun about three to five feet away. Although he could not describe what the man was wearing, Rowell said he saw the man's eyes and the gun. He could not be more specific about the gun, stating that he was not a gun specialist, and he didn't know if the gun was real or a play gun, just that it was black. Rowell testified that the robber told him to "give it up MF." When Rowell asked what he meant, the robber told him he wanted cash. Rowell explained that he worked for Durham Housing and he had no money. The robber said, "don't make me waste your ass." Someone else came by and said something to the robber, and the two people left. Rowell went inside and called 911. Police arrived within a few minutes, and they went to the parking lot where several people were hanging around. Rowell immediately identified juvenile to the police as the person who attempted to rob him. Approximately seven minutes had passed since the incident. Rowell also identified juvenile in court as the person who attempted to rob him with a gun.
Officers Timothy Jones and Kimberly Schooley received the call about the incident and within five minutes arrived at the apartment. After Rowell told them what happened, they escorted him around the building to the parking lot, where about ten to fifteen people were congregated. Rowell immediately picked out juvenile from the crowd and told the officers that he was the man who tried to rob him. Juvenile was taken into custody and the area searched. No gun was found on juvenile's person or in the area.
Juvenile testified that he had come to the residential complex for a party. There was a person at the party, nicknamed "Dude," who had a gun. Juvenile thought the gun might have been a BB gun due to an air cartridge, but "Dude" kept the gun mostly covered. Juvenile testified that "Dude" did not let anyone else hold the gun. At some point a group of individuals, including juvenile and "Dude," left the party and went to the parking lot to hang out. Juvenile and another person followed "Dude" behind the apartment building, and they realized that "Dude" was attempting to rob someone. They stayed back and watched. Another person came up and told "Dude" to stop, because it wasn't worth it, and took the gun from "Dude." "Dude" left, and juvenile and the others went back to the parking lot.
Juvenile moved to dismiss the charge at the close of the State's evidence and at the close of all the evidence; the motions were denied. The trial court adjudicated juvenile delinquent at the close of the adjudication hearing. The matter was set for disposition on 17 April 2008. The trial court entered a level III disposition, which included an assessment, commitment for an indefinite period of time, speech therapy, and an order that juvenile have no contact with another youth, [J.B.]. From the adjudication and disposition, juvenile appeals.
Juvenile first argues that the trial court erred in denying his motion to dismiss the charge for lack of sufficient evidence. Juvenile specifically argues that the State failed to present sufficient evidence that he was the perpetrator of the offense, or that a dangerous weapon was used in the incident. We do not agree. A trial court's denial of a motion to dismiss is reviewed in this Court de novo. State v. Hart, 179 N.C. App. 30, 39, 633 S.E.2d 102, 108 (2006), disc. review denied as to additional issues, 360 N.C. 651, 637 S.E.2d 182 (2006), aff'd in part, rev'd in part on other grounds, and remanded, 361 N.C. 309, 644 S.E.2d 201 (2007). "Where the juvenile moves to dismiss, the trial court must determine `whether there is substantial evidence (1) of each essential element of the offense charged, . . . and (2) of [juvenile's] being the perpetrator of such offense.'" In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (2001) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "`Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion.'" In re S.R.S., 180 N.C. App. 151, 156, 636 S.E.2d 277, 281 (2006) (quoting State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)). In reviewing a motion to dismiss, courts must view the evidence in the light most favorable to the State, including all reasonable inferences to be drawn therefrom. In re Brown, 150 N.C. App. 127, 129, 562 S.E.2d 583, 585 (2002).
"An attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result." State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423 (1987). Juvenile contends that since the victim testified that he was not sure if the gun was real or a play gun, and that he only saw the gun and the robber's eyes, the State has both failed to show that juvenile was the perpetrator of the crime and that an actual dangerous weapon was used. Further, juvenile cites to his own testimony regarding the weapon being a BB gun as well as State v. Alston, 305 N.C. 647, 651, 290 S.E.2d 614, 616 (1982), to support his contention that a BB gun is not a dangerous weapon within the meaning of the armed robbery statute.
Taking the evidence in the light most favorable to the State, we find that sufficient evidence was presented on the identity of juvenile as the perpetrator of the offense and the dangerous weapon element to survive a motion to dismiss. Evidence was presented that the area in which Rowell was working was lighted, he saw juvenile with a gun pointed at him, juvenile threatened to "waste" Rowell if he did not give him money, and after law enforcement arrived less than ten minutes later, Rowell immediately identified juvenile as the robber from a group of ten to fifteen people without any hesitation. He also identified juvenile in the courtroom as the person who attempted to rob him. We find there was sufficient evidence of defendant's identity as the perpetrator of the crimes charged, and sufficient evidence that a dangerous weapon was used. Therefore, the trial court did not err in denying the motion. This assignment of error is overruled.
Next, juvenile contends that a comment made by the trial court regarding the credibility of the victim was improper and violated his right to a fair and impartial trial. Juvenile asserts that the trial court based his decision on improper factors, constituting structural error in the trial. Juvenile argues in the alternative that the trial court committed plain error. We are not persuaded by juvenile's arguments.
It is axiomatic that every person charged with a criminal offense should be permitted an opportunity to be tried before an impartial and fair judge. State v. Larrimore, 340 N.C. 119, 154, 456 S.E.2d 789, 808 (1995). This Court uses a totality of the circumstances test to determine whether a judge's comments "cross into the realm of impermissible opinion." Id. at 155, 456 S.E.2d at 808. "`Unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.'" Id. (quoting State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950)).
We first note that although juvenile argues both structural error and plain error in his brief, juvenile did not preserve these issues for review, because he neither raised the issue at his hearing nor stated with specificity the bases for review in his assignment of error on this issue. See State v. Garcia, 358 N.C. 382, 409-11, 597 S.E.2d 724, 744-45 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005) (structural error is a rare form of constitutional error which must be raised at trial to preserve for appellate review); N.C.R. App. 10(c)(4) (2008) (challenged judicial action must be "specifically and distinctly contended to amount to plain error" for plain error review). His assignment of error merely challenges the trial judge's comments as being impartial and requiring reversal of the adjudication. Therefore, juvenile has failed to preserve structural error or plain error for our review. However, we will review the challenged comments for reversible error by utilizing the totality of the circumstances test.
Here, the trial judge was acting as fact-finder without a jury when he stated that he found the witness to be credible. He commented:
[The victim] says that the time between the incident and the time that he identified the juvenile to law enforcement was at most seven minutes. I can tell you that if a gun's been pulled out in my presence I remember it very clearly. Even though the last time was 35 years ago I remember it like it was yesterday.
This happened three months ago. So when a witness tells me that all he remembers is a face and the gun I know exactly what he's talking about. And I don't believe he made a mistake.
Juvenile contends the trial judge impermissibly based his decision on a personal experience. However, we do not find any indication in the record that the trial judge was impartial in any way. A "trial judge, sitting without a jury, has discretion as finder of fact with respect to the weight and credibility that attaches to the evidence." Smithwick v. Frame, 62 N.C. App. 387, 392, 303 S.E.2d 217, 221 (1983). Here, the trial judge had the duty to determine the weight and credibility of the witnesses presenting evidence before him, and his comment merely reflected his thought process in how he arrived at his decision. Juvenile has not shown, in the totality of the circumstances, that the trial judge's comment constituted impermissible opinion. This assignment of error is overruled.
Finally, juvenile argues the trial court committed reversible error by failing to make any findings of fact to support the Level III commitment in the disposition order. We agree that the court erred and remand for a new disposition hearing.
The North Carolina General Statutes provide that the trial court "shall select a disposition that is designed to protect the public and to meet the needs and best interests of the juvenile, based upon:
(1) The seriousness of the offense;
(2) The need to hold the juvenile accountable;
(3) The importance of protecting the public safety;
(4) The degree of culpability indicated by the circumstances of the particular case; and
(5) The rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.
N.C. Gen. Stat. § 7B-2501(c)(2008). Further, The dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law. The Court shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition including the kind, duration, and the person who is responsible for carrying out the disposition and the person or agency in whom custody is vested.
N.C. Gen. Stat. § 7B-2512 (2008). Here, the State concedes that the trial court failed to make appropriate findings of fact to support the disposition, and we note that the disposition order is not only devoid of any findings, but also fails to provide any information regarding juvenile's delinquency history. Accordingly, we remand for a new disposition hearing.
No error in part and remanded for a new disposition hearing.
Report per Rule 30(e).
Chief Judge MARTIN and Judge BRYANT concur.